SECURING A "FAIR GO" - ILO, AUSTRALIA AND THE WORLD - International Industrial Relations Association 15th World Congress Sydney Convention Centre ...
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SECURING A “FAIR GO” – ILO, AUSTRALIA AND THE WORLD International Industrial Relations Association 15th World Congress Sydney Convention Centre, Darling Harbour, Sydney 26 August 2009. The Hon. Michael Kirby AC CMG
INTERNATIONAL INDUSTRIAL RELATIONS ASSOCIATION
ASSOCIATION INTERNATIONALE DE RELATIONS
PROFESSIONELLES
ASOCIACIÓN INTERNACIONAL DE RELACIONES DE TRABAJO
15TH WORLD CONGRESS
SYDNEY CONVENTION CENTRE, DARLING HARBOUR, SYDNEY
26 AUGUST 2009.
SECURING A “FAIR GO” – ILO, AUSTRALIA AND THE WORLD
The Hon. Michael Kirby AC CMG∗
RETURNING TO BASICS
This Congress meets at an important time for the world economy when
employers, employees, and the world community face great challenges
as a result of the global financial crisis.
This occasion affords me an opportunity to return to the company in
which I worked intensively when I was a young barrister, here in Sydney,
Australia. My first judicial appointment, in 1975, was as a Deputy
President of the Australian Conciliation and Arbitration Commission.
That tribunal traced its origins back to the Commonwealth Court of
Conciliation and Arbitration, established by federal legislation in 19041.
It was re-created in a new form in 1956, when the original court was
struck down for constitutional reasons by a decision of the High Court of
Australia2. In 1996, this body was, in turn, succeeded by the Australian
Industrial Relations Commission. And on 1 July 2009, I attended the
∗
Justice of the High Court of Australia (1996-2009); Deputy President of the Australian Conciliation and
Arbitration Commission (1975-1983); member of the ILO Fact-finding and Conciliation Commission on
Freedom of Association concerning the Republic of South Africa (1997-2).
1
Conciliation & Arbitration Act 1904 (Cth).
2
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.
1inaugural sitting of the latest manifestation of Australia’s national
employment tribunal: Fair Work Australia.
As the representative of the employers told that body, assembled on that
occasion3:
“Over the past 100 plus years a uniquely Australian industrial
relations system has evolved which has served this country well.
The central tenet of the system has been the notion of a “fair go all
around”. Whilst this central tenet has endured, the system has
continued to change and evolve. The pace of change has been
particularly rapid over the past 15 years with different political
parties pursuing their industrial relations ideas and policies.”
I am specially grateful that, in this international congress, an occasion
arises for the Industrial Relations Society of Australia to present to a
number of my colleagues, and to me, awards for lifetime service in
industrial relations. I am proud to join Mary Gaudron, Pauline Griffin,
Joe Isaac, Keith Hancock, John Niland and Di Yerbury in receiving this
award. All and any of them are better qualified than I to present this
address. However, the privilege has fallen to me. But I start by
honouring my colleagues and all those many others who have
contributed, during more than a century, to the distinctive, ethical and
human rights-respecting institutions that have protected the rights and
privileges of workers and employers in Australia and upheld the public
interest in this uniquely important field of human endeavour.
Two of the honorands, Di Yerbury and I, returned to Australia from
overseas this morning to be present on this occasion. Professor
Yerbury arrived a few minutes behind me on QF2 from London. I
returned on QF12 from New York. Such is also the world that has
3
Stephen Smith, Director, National Work Place Relations, Australian Industry Group, address to the
inaugural sitting of Fair Work Australia, Sydney, 1 July 2009.
2brought the international visitors to this Congress and overcome the
tyranny of distance that once substantially cut Australia off from the rest
of humanity. Our overnight journeys demonstrate vividly the essential
unity of the world and of the human species. They illustrate the reasons
why the discipline of labour and employment relations is not now one of
purely domestic concern. It is one of global concern. It touches upon
several basic features of human existence and fundamental human
rights.
For me, getting here for this dinner was no sure thing. I travelled from
Halifax, Nova Scotia, Canada, on the far side of the North American
continent. The challenge was to avoid Hurricane Bill and to slip in and
out of Halifax when Bill was not watching to give my address yet to be
here for this dinner. After doing so, I sat through the night and had a
long time to reflect on these remarks.
My journey demonstrates the impact upon all of our lives of international
realities. My address at the Halifax conference concerned the
International Child Abduction Convention. This is itself a consequence
of the new technology of flight that makes it possible to take a child to
the other side of the world but equally possible to return it, under court
orders, so as to discourage parties from taking the law into their own
hands.
Technology cements the international relationships that now exist. It
helps the human mind to reach out into space and to explore the furthest
planets and distant galaxies. It allows us to plunge into the deepest
oceans and to view the Titanic as it lies deep at the bottom of the
Atlantic, not far from Halifax. It also permits us to split the atom and to
3map the genome. In between the vastness of space and the tiny reality
of the genome stand human beings: with all their faults and foibles. The
global dimension that technology reinforces, teaches us to think as
human beings and to endeavour to act together upon matters of
common interest. One such matter is labour and employment relations.
This has brought us together on the brink of a Southern Spring to
explore our differences and to discover the issues that we share in
common.
So this is the structure of my remarks. I will first offer some observations
on the international dimension. I will then proffer some comments on the
national scene in Australia. Finally, I will turn to some personal remarks
because universal human rights are generally concerned with individual
human beings. And people are the stuff that labour and employment
relations are ultimately about.
THE INTERNATIONAL DIMENSION
Australia was a foundation member of the International Labour
Organisation (ILO)4. That body was originally established under Art 387
in Pt. XIII of the Treaty of Versailles that brought the First World War to a
conclusion. The article is worth remembering. It said in part:
“And whereas conditions of labour exist involving such injustice,
hardship and privation to large numbers of people as to produce
unrest so great that the peace and harmony of the world are
imperilled; and an improvement of those conditions is urgently
required: as, for example, by the regulation of the hours of work,
including the establishment of a maximum working day and week,
the regulation of the labour supply, the prevention of
unemployment, the provision of an adequate living wage, the
protection of employment, the protection of children, young
persons and women, provision for old age and injury, protection of
4
See Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 489.
4the interests of workers when employed in countries other than
their own, recognition of the principle of freedom of association,
the organisation of vocational and technical education and other
measures.”
The legal foundation for the constitution of the ILO was amended by the
General Conference in 1922, 1945 and 1946. The constitution as it now
stands is reproduced in an Australian statute and, generally speaking,
Australia has been an active, constructive and loyal member of the ILO
from the beginning5.
One of the most interesting and useful tasks of my life was to participate
in a mission of the ILO to South Africa. The results of that mission were
published in the Official Bulletin of the International Labour Office titled
Prelude to Change: Industrial Relations Reform in South Africa6.
Please do not tell me that the ILO is an ineffective international talk
shop. I have seen it close up. I have witnessed the way in which it can
be an important instrument to achieve basic rights and to protect human
dignity. I took part in that endeavour as it concerned South Africa.
Some background will be useful. In 1948, the National Party won the
general election in South Africa, based as it was then on a franchise that
excluded the majority of the non-Caucasian population. It was part of
the electoral mandate of the party that it would reinforce apartheid – a
theory of separate development of the races within South Africa that
already had support in earlier legislation. As the apartheid laws were
strengthened, and new laws enacted, great disadvantages fell upon
5
International Labour Organisation Act 1973 (Cth).
6
ILO, Fact-finding and Conciliation Commission on Freedom of Association, Report Concerning the
Republic of South Africa: Prelude to Change: Industrial Relations Reform in South Africa (ILO Official Bulletin
(Special Supplement), Vol. LXXV, 1982, Series B, Geneva, 1992) (hereafter “ILO Report”).
5South Africans who were not of the so-called “white” or European race.
Group areas legislation and pass laws were strengthened as the
machinery to enforce apartheid in daily life. To these racist laws, the
membership of the United Nations responded with indignation.
In 1965, a special report on apartheid was presented to the Director-
General of the ILO. Moves were then taken to challenge the credentials
of the government of South Africa within the ILO. These moves were
seen as a test case for a broader move to expel South Africa, as then
represented, from the United Nations, of which it had been a foundation
member. In 1966, as the government of South Africa proceeded to
elaborate its apartheid laws and to stiffen those provisions, the
government gave due notice of the intention of the country to withdraw
from the ILO. In that way, it was hoped, South Africa would avoid a
public vote on its credentials.
The withdrawal duly took effect. It was accompanied in South Africa by
an increasing recognition of the injustice of the country’s industrial
relations laws. Limits were imposed upon access by trade unions to
work places. Unions were also banned from taking part in any ‘political’
activity, including challenging apartheid itself. They were required to
organise themselves along racial lines. Slow and inefficient court
procedures were left unreformed. Domestic, farm and most state
employees were excluded from protection under the nation’s labour
laws. At this time, from within South Africa, the situation seemed grim.
Hope was not plentiful. Leaders of the freedom movement, including
Nelson Mandela, were imprisoned on Robben Island. No-one could
have forecast the changes that would come quite quickly.
6In 1988, the Council of South African Trade Unions (COSATU) lodged a
complaint with the ILO concerning the failure of South Africa to observe
the requirements of international law as expressed in ILO conventions.
By 1991, the South African government had rejected the COSATU
complaint. Within the ILO, the procedures for determining the complaint
became mired in legal arguments about the validity of the challenge and
what the ILO should do about it. To its great credit, the ILO persisted
with the complaint. It proceeded to initiate an investigation.
In February 1990, the State President, Mr. F.W. De Klerk, had made an
important speech to the South African Parliament calling for the repeal
and amendment of many of the apartheid laws. It was in the wake of
this announcement7 that the ILO decided to establish a Fact-finding and
Conciliation Commission to investigate the labour laws of South Africa.
After some initial difficulties, the De Klerk government agreed to receive
the commission.
The Director-General of the ILO (Mr. Michel Hansenne) appointed a
three-member body: Sir William Douglas, former Chief Justice of
Barbados; Justice Rajsoomer Lallah, judge and later Chief Justice of
Mauritius, and myself. We held our first meeting in Geneva in October
1991 when we each took the promises of office and began preparing for
the mission. In February 1992, we proceeded to South Africa where we
conducted an investigation in several parts of the country. Thereafter,
we began to write our report, which was completed in October 1992.
I wish to acknowledge the presence at this Congress of a fine Australian
lawyer, Mrs. Jane Hodges, who then worked in the Secretariat team for
7
ILO Report, p40, pars 108-9.
7our mission and who is still an officer of the ILO. Indeed, she is now the
Director of the Bureau of Gender Equality. She continues to perform
vital work for human rights. Our mission worked with great harmony,
efficiency and focus. We knew that we enjoyed the special privilege of
contributing to important changes in South Africa’s economy and
society. We were determined to ensure, so far as we could, that the
changes we proposed would secure basic civil liberties of all South
Africans, including the rights to freedom association and collective
bargaining as precious attributes of a free society8.
The ILO mission report contained a series of recommendations for
enhancing the rule of law, protection of basic rights and observance of
ILO principles. It called attention, particularly, to the Protection of the
Right to Organise Convention (No.87, 1948); the Right to Organise and
Collective Bargaining Convention (No.98, 1949); and the Workers’
Representation Convention (No.135, 1971). We gave close scrutiny to
the situation in South Africa and how its laws and practices could be
brought into conformity with the ILO principles, with a view to the
eventual return of that country to full membership of the ILO.
During our visit to South Africa, the mission had the advantage of
meeting leaders of COSATU and employer organisations, government,
church and other officials. We had the privilege to meet Mr. Nelson
Mandela, then newly released from his long imprisonment. In our
proposals, we were not content with generalities but drew on our own
backgrounds and experience to offer practical suggestions for the ways
forward in South Africa as it faced the prospect of transition to
democratic government.
8
ILO Report, p206, par.746.
8I was present in Pretoria on 10 May 1994 when President Mandela was
sworn into office. I later watched as the labour reforms were introduced
by his government, based substantially on the ILO report. The Labour
Relations Act 1995 (SA) implemented many of our recommendations.
This was, I believe, a fine example of the way the organised international
community can sometimes help to bring a country, divided and
disengaged from the world community, into compliance with
fundamental rules for human dignity and equality. When I hear critics of
the ILO, I think back on the mission to South Africa and the utility of what
we did on that occasion. All of us should remember such achievements.
Above all, we should honour the faithful officers of the ILO who quietly
and efficiently take part in such activities all the time.
THE NATIONAL PERSPECTIVE
By a series of chances, my career eventually took me away from
industrial relations and led ultimately to my appointment to the final
national court of Australia. That court, the High Court of Australia, has
had a very long association with the national industrial tribunal. Nine of
the forty Justices, up to my appointment, had been presidential
members of the tribunal. Justice H.B. Higgins was the leader of the
tribunal when it established its basic approach and principles. From time
to time, cases came before me in the court which touched upon aspects
of industrial relations law. Occasionally, Justice Gaudron and I would
reflect upon the enjoyable days when we were legal practitioners before,
and later presidential members of, the old Arbitration Commission.
As the first decade of the 21st Century unfolded in Australia, significant
steps were taken to alter the basis upon which the Australian Industrial
9Relations Commission had been established. These steps coincided, in
part, with the celebrations of the centenary of the predecessors of the
tribunal which fell in October 2004. I took part in that celebration. I
contributed, with Professor Breen Creighton, to a book that was written
to record, and celebrate, the many contributions of the tribunal to the
economic and social life of Australia9.
Specifically, I was present on an occasion, on 22 October 2004 when a
hundred years of national conciliation and arbitration in this country were
celebrated. At that event, I made a few predictions10:
“From the High Court of Australia, the other independent national
decision-maker expressly envisaged by the Constitution11, I offer
words of respect and praise on the centenary of industrial
conciliation and arbitration in Australia.
Let there be no doubt that the national conciliation and arbitration
tribunal was expressed in our Constitution. In the words of Justice
Isaacs, one of the founders of the Commonwealth, it was
‘conspicuously on the face of the Constitution, the third party to
every significant industrial dispute’12.
Each of the constitutional bodies, the High Court and now the
Australian Industrial Relations Commission, required legislation to
set them up so as to perform the functions envisaged at the
creation. Each of the bodies has celebrated, within a year of the
other, their centenary, which accompanied, in turn, the centenary
of the Commonwealth. Each of the national bodies has played an
influential, even pivotal, role in the history and culture of this
continental country. Each has been an exemplar of good
governance and the rule of law. Each has been an instrument for
9
J. Isaac and S. Macintyre (Eds), The New Province for Law and Order: 100 Years of Industrial
Conciliation and Arbitration, Cambridge Uni Press, Cambridge, 2004. See ch3 “The Law and Conciliation and
Arbitration”, Ibid, 98.
10
M.D. Kirby, “Industrial Conciliation and Arbitration in Australia – A Centenary Reflection”, (2004) 17
Australian Journal of Labour Law, 229
11
Australian Constitution, s71; cf. s51(xxxv).
12
R v The Commonwealth Court of Conciliation and Arbitration and the Merchant Service Guild of
Australasia; Ex parte Merchant Allen Taylor & Co. (1912) 15 CLR 586 at 609-10. See also J.C. Williamson Ltd v
Musicians’ Union of Australia (1912) 15 CLR 636 at 654.
10the defence of fundamental human rights and dignity. The overlap
of personnel between the two bodies has existed over much of the
century ... Our two institutions are therefore locked together in a
yoke devised by the Constitution. Sometimes the burden has
been easy; but not infrequently (as the recent decision in the
Electrolux case shows13, it is heavier and, from time to time,
dictates a change of course.”
As I made these remarks, I had no reason to believe that, within so short
a time, there would be a challenge to the constitutional basis of the
Australian way of resolving labour and employment disputes. Yet that
challenge came in two guises. Each arose ultimately out of the
enactment by the Australian Parliament of the Work Place Relations
Amendment (Work Choices) Act 2005 (Cth).
In point of time, the first challenge concerned an extremely expensive
campaign of paid media advertising in support of the legislation,
authorised by the federal government and funded by the tax payer. This
campaign, and the millions of dollars of public funds spent on it, were
challenged before the High Court of Australia, in an important case,
Combet v The Commonwealth14. The challenger was the then Secretary
of the Australian Council of Trade Unions (ACTU). He alleged that the
Parliament had not expressly approved the appropriation of funds for the
particular purpose of “political advertising”. He argued that this defect
rendered the expenditure of such funds by the government of the day
unconstitutional, so that it should be forbidden and the expenditure
halted.
The second case was an even more direct challenge to the validity of
the legislation enacted by the Australian Parliament. It produced
13
Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309.
14
(2005) 224 CLR 494.
11proceedings in the High Court of Australia in New South Wales v The
Commonwealth (Work Choices Case)15. That challenge contested the
entitlement of the Parliament to shift the legal basis for Australia’s
national labour and employment law from the traditional reliance on the
conciliation and arbitration power granted to the Parliament by s51(xxxv)
of the Australian Constitution to a power, granted by s51(xx), which give
the Parliament power to enact laws with respect to defined corporations.
Unusually, for most constitutional litigation, these two cases attracted a
great deal of attention in Australia. From the start, the Work Choices
legislation and the appropriation of very large funds to promote its
acceptance in the community were highly controversial moves by the
former (Howard) government. Undoubtedly, there was resentment in
many sections of the community over the expenditure by that
government of public funds to promote what was seen as partisan and
divisive laws. Moreover, that enactment was itself highly controversial
because it was viewed in many quarters as a significant shift from the
protective provisions of s51(xxxv) to the provisions of s51(xx), lacking
such protections.
Until the Work Choices Case before the High Court, it had generally
been considered in Australia that the only way the national Parliament
could enter upon the field of legislation on industrial relations by way of
general measures was by invoking the Federal constitutional power to
enact laws with respect to conciliation and arbitration. The Work
Choices Case, however, by majority, held that this assumption was
incorrect. The High Court of Australia upheld the invocation of the
corporations power. It thereby pulled away the constitutional
15
(2006) 229 CLR 1 at 2.
12underpinning that, for more than a century, had provided the legal
foundation for general federal legislation in this area in Australia.
To say the least, there was a great deal of consternation in many circles
in Australia about each of those developments. Many citizens resented
the paid political advertising. Many others resented the Work Choices
Act. At a federal election held in November 2007, the Howard
government was defeated at the polls. The Australian people elected a
government led by Mr. Kevin Rudd. Exit polls at the time of the election
indicated that resentment of the two measures I have mentioned was the
major consideration that resulted not only in the defeat of the
government but also the defeat of Prime Minister John Howard in his
own electorate. Only once before in the history of the Australian
Commonwealth had a prime minister been defeated in a general
election. This was Mr. Stanley Bruce in 1929. And he was likewise
defeated because of attempts to amend the conciliation and arbitration
law.
The political considerations to which I have referred have to be
distinguished from the legal challenges to the legislation. Essentially,
the challenge to the appropriation law was founded upon arguments,
based partly on constitutional history and on the express requirements of
the Australian Constitution, obliging parliamentary approval for
expenditures of revenues raised from the people by way of taxation.
Although the majority of the High Court upheld the Appropriation Acts as
adequate, sufficiently specific and constitutionally valid, Justice Michael
McHugh and I dissented. We did so upon the footing that, to permit
such an expenditure of funds, particular and express appropriation
legislation was required. It was our view that the control by the
13Parliament of the expenditure of public funds was central to the
democratic accountability of the Executive through Parliament to the
people. This therefore obliged a measure of precision in the
parliamentary approval for appropriations of such sums. It would not
justify vague and imprecise appropriations expressed in language of
opaque generality (“higher productivity, higher pay work places”). In a
sense, the Combet case concerned the growing use of “spin” in public
life, and now in legislation, in many Western democracies. The
minority’s attempt to forestall that particular trend failed. However,
public resentment in Australia was undoubtedly created by the
advertising. This remained unabated after the failed challenge by Mr.
Combet before the High Court.
The Work Choices Case involved an intricate exercise in Australian
constitutional law. Once again, two Justices dissented, namely Justice
Ian Callinan and myself. This alliance represented an unusual judicial
unity ticket. The most conservative and liberal wings of the Court came
together to protest at the alteration in the constitutional foundation of
federal industrial laws. Justice Callinan based his objection on the
footing of the ‘original intent’ of the founders of the Australian
Commonwealth. I could never agree with that approach. For me, the
objection to a shift of the use by the corporations power (otherwise
undoubtedly a substantial one) rested on the high specificity of the
particular provision expressly included in the Australian Constitution
obliging any federal industrial legislation to proceed by way of the
indirect procedures of conciliation and arbitration.
14As I may never again have the opportunity and pleasure to remind an
audience of the essence of my reasoning in this regard (and as it may
be of present interest) I will do so now16:
“Before a quietus is administered by this Court to these long-
standing, basic and beneficial features of Australia’s constitutional
arrangements, reflected in past federal legislation, adopted and
amended by successive Parliaments and a mass of case law, it is
necessary to recall to mind the important guarantee of industrial
fairness and reasonableness that has been secured by this Court’s
adherence to the requirements of s51(xxxv) over more than a
century.
The story can be traced back at least to the decision of Higgins J
in Ex Parte H.V. McKay (the Harvester Case) which, with its
successors, had a profound effect on the wages and conditions of
life of Australian workers and their families. But it also extended to
decisions concerning standard hours of work; the development of
the principle of equal pay for women workers; fairness and training
requirements in the conditions of juniors and apprentices and the
removal of discriminatory employment conditions for Aboriginals.
The regulation of excessive overtime to compensate workers and
to encourage employers to a better system of organising the work;
the introduction of bereavement or compassionate leave
entitlements; the introduction of provisions for retrenchment for
redundancy; and reinstatement in cases of unfair termination are
just some of the matters arising in industrial disputes in Australia
decided by the process of federal conciliation and arbitration over
the course of a century. Work value cases frequently ensured
attention to the provision of fair wages and conditions to manual
and other vulnerable workers which market forces and corporate
decisions alone would probably not have secured. Attention to
particular conditions of work, including arduous, distressing,
disagreeable, dirty or offensive work, instilled in Australian work
standards an egalitarian principle not always present in the pure
operation of the market or the laws and practices of other
countries. The effect of this history, clearly anticipated by the
language of the grant of constitutional power in s51(xxxv),
16
Work Choices Case (2006) 229 CLR 1 at 218 [523]-[524] (citations omitted).
15profoundly affected the conditions of employment and hence of
ordinary life of millions of Australians.”
Although it is conventional in Australia to give a heads of the grant of
federal legislative power a very broad reading, it is also normal that this
approach is limited where the grant is itself subject to a condition that
would be nullified by permitting other heads of power to be utilised to
circumvent the constitutional guarantee17. Proceeding with industrial
regulation through an independent and neutral decision-maker had been
a guarantee of “a fair go all round” in the resolution of industrial disputes
in Australia18. By the Work Choices Case, a century of decisional law in
Australia was swept aside. It is unlikely that it will be restored. The
neutral arbitrator and mediator are no longer constitutionally required.
An ingredient for producing the socially advantageous features of
Australia’s federal industrial relations system is effectively written out of
the Constitution.
Some lawyers in Australia knew little about the previous system. Some
were possibly hostile to it. Yet for those, on all sides of the record, who
took part in the application of the old law, its benefits were generally
recognised as significant and incontestable. Undoubtedly, its features
were most influential in the evolution of Australia’s labour laws and
practice.
Since my retirement from the High Court, I have been elected President
of the Institute of Arbitrators & Mediators Australia (IAMA). There is a
certain irony for me to observe the increasing tendency to introduce into
17
See e.g. Bourke v State Bank of NSW (1990) 170 CLR 276 at 285.
18
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at 548-549 [30], citing Re Loty
and Holloway v Australian Workers’ Union (1971) AR(NSW) 95. See also Work Choices Case (2006) 229 CLR 1
at 244 [609].
16most forms of commercial and other dispute resolution in Australia
alternative measures by way of conciliation, mediation and arbitration.
Yet, at the very moment when these moves were afoot in the general
legal system, a legal revolution expelled their beneficial constitutional
foundation for the resolution of a form of disputation that was peculiarly
suited to such procedures: employment disputes. Mediation,
conciliation and arbitration are usually most successful where the parties
to a contest have shared reasons for seeking an agreed resolution by
reason of their ongoing relationships. Normally this is the case in
employment disputes. In that sense, the adoption by the Australian
Constitution of s51(xxxv) was a prescient move by the founders. It
anticipated by a century the shift to alternative dispute resolution outside
the courts that is now underway elsewhere in Australian legal
disputation.
Of course, opponents have emerged from the woodwork to attack the
establishment of Fair Work Australia and even to emphasise its
continuity with the national tribunals that had preceded it. These critics
denounce what they see as the “return” of the “cosy IR club”19. As
someone who was only a temporary member of that club, and who has
long since ceased to use the club’s facilities, I often questioned the world
in which those commentators must live.
The long list of just, industrial determinations, that are the legacy of the
Australian industrial tribunals, made Australia a fairer and more
egalitarian place. Every now and again, these economic rationalists
need to ask themselves what work is for. Why people live. Why
19
M. Stutchbury, “Cosy IR Club Returns”, The Australian, 7 July 2009, p10; M. Stutchbury, “Back to Bad
Old Days”, The Australia, 24 August 2009, p8.
17economics operates in society. One would think that they would have
learned some lessons from the chaos that has been occasioned by the
global financial crisis, substantially as a result of unregulated, or
inadequately regulated, financial markets. However, these dogmatists
learn nothing from the past. They are like the Bourbons truly, they are
industrial ayatollahs.
The fact is that there are values in life other than economic
maximisation. The list of equitable work provisions that I included in my
reasons in the Work Choices Case, strengthened the Australian
economy. More important, they reinforced the democratic and
egalitarian features of our society. It is my hope that Fair Work Australia
will find an honoured place in the continuity of the national industrial
relations tribunals in Australia. Employers and employees still enjoy the
facility of a common ground. As in the past, the national industrial
relations tribunal can afford the neutral space in which to explore that
common ground and to achieve efficient and equitable outcomes20.
Whether this will prove so will depend on the terms of the legislation, the
skill of the tribunal members, and the will of the disputing parties.
A PERSONAL PERSPECTIVE
I come finally to a personal observation. It grows out of my previous
theme. It demonstrates the fact that the struggle for human dignity and
equality are never over.
A few weeks ago, I was in Geneva attending a meeting of the Human
Rights Reference Group of UNAIDS. A presentation was made to the
meeting by officers of the ILO, concerning a new Recommendation for
20
M. Steketee, “Unions and Employers Share Common Ground”, Weekend Australian, 4 July 2009, p21.
18the protection of workers living with HIV and AIDS that is being piloted
through the organs of the ILO. Because of the overlap of the work of
ILO in this respect with UNAIDS, and as one of the participating bodies
of the United Nations and UNAIDS, a robust exchange took place at the
meeting. I was glad to see the ILO taking new initiatives to protect
employees from stigma, discrimination and injustice. If those infected
with HIV have access to anti-retroviral drugs, such employees can
continue, possibly indefinitely, to play a full and active part in the
economy and in full and productive lives for themselves and their
families.
Because of my own sexuality, I looked closely of the provision of the
draft ILO Recommendation concerning one cohort of persons
particularly vulnerable to HIV who, in Australia and elsewhere, have
been in the forefront of measures designed to reduce the spread of the
virus. I refer to men who have sex with men (MSM). This group, and
also commercial sex workers (CSWs), injecting drug users (IDUs), and
dependent women, prisoners and refugees, all represent especially
vulnerable groups from the perspective of UNAIDS, but also of the ILO.
The emerging ILO Recommendation is undoubtedly a welcome move.
However, some of its language is obscure. Some member states are
reportedly resistant to the preventive strategies that are essential to
empower the vulnerable groups and to reduce the spread of HIV. Even
today, approximately 2.7 million people every year become infected with
HIV. Very large numbers of them live in sub-Saharan Africa, including in
South Africa which had just overcome the blight of apartheid when the
full force of HIV/AIDS struck.
19The first time I saw in an Australian federal statute a reference to the
need for special protections for persons on the ground of sexual
orientation (there called “sexual preference”) was in an Act designed to
implement, as part of federal law, provisions of the ILO Convention
concerning Discrimination in Respect of Employment and Occupation of
1958 and also the Termination of Employment Convention of 1982. In
the former Convention, Article 1 contained an inclusive definition of
discrimination as including “any distinction, exclusion or preference on
the basis of race, colour, sex, religion ... (etc)”. That Convention was
invoked by the Australian parliament as a basis for enacting a federal
law to provide remedies against forbidden discrimination or unjust
termination of employment in Australia. The inclusive character of the
ILO definition was invoked to add to the list of forbidden grounds certain
other bases, not expressly stated by the ILO Convention, including
“sexual preference, age, physical or mental disability, marital status,
family responsibilities, pregnancy, religion, political opinion, national
extraction or social origin”21.
In this way, perhaps unwittingly, the inclusive definition in the ILO
Convention became a foothold in Australia for a slightly wider definition
in the relevant federal law. I am not sure that the ILO can take much
credit for this expansion of coverage. Rather, the credit would appear to
lie with the Australian government and Parliament which concluded that
the ILO Conventions were too narrow, restricted and old-fashioned.
That is the history of how the prohibition on discrimination against
employees on the basis of their “sexual preference” and the prohibition
21
See Industrial Relations Amendment Act (No.2) 1994 (Cth), Objects. Discussed in Industrial Relations
Case (1996) 187 CLR 416 at 471.
20of their termination on such grounds came to be expressed in federal
law in Australia. It would have been better if the ILO had itself explicitly
adopted such a ground and forbidden it. But, instead, the ILO list was
still largely anchored in the traditional language of the Treaty of
Versailles of 1919. It had not caught up with the scientific, social and
other advances that taught the need to prohibit discrimination on other
grounds analogous to race.
The position today, in our world, is that discrimination against persons
on the basis of their sexual orientation is still a major challenge awaiting
an effective human rights response, including by the ILO. To some
extent, the urgency of providing a response has been created by the
AIDS epidemic. However, the fundamental reason for adopting such
provisions is not AIDS as such. By extension from race, colour and sex,
it is the fact that individuals do not choose their sexual orientation. They
cannot change it, easily or at all. To discriminate against them, or to
terminate their employment on such a ground, is as wrong as doing so
on the basis of race, colour or sex. Moreover, such discrimination
reinforces a kind of sexual apartheid, by which people will only tolerate
or value those who seem to be like themselves. This was the vice that
lay at the heart of racial apartheid. Sadly, a great deal of sexual
apartheid exists in the African continent which should have learned from
the lessons of apartheid. Fortunately, such discrimination is prohibited
by South African law following the determination of those who wrote the
new Constitution. They were determined that their country would be
founded on broad principles of equality and mutual respect.
Elsewhere in Africa and specifically in 41 of the 53 countries of the
Commonwealth of Nations, the law retains the criminal laws that
21penalise private adult sexual relations between people of the same sex.
This is a shocking legacy of colonial times. It is a legacy that all of the
developed countries of the Commonwealth of Nations have repealed.
The greatest resistance to change lies, however, in developing
countries. They bear out Bishop Desmond Tutu’s wise words that
“everyone must have someone to look down on”.
The journey of human rights respect is never ending. In the ILO, the
treatment of the issues of sexual orientation has been, at best, muted
and generally rather ineffective. There seems to be a lack of resolve
and of leadership on this subject. Just imagine what an outrage it would
have been if there had been a similarly passive attitude to racial
apartheid in the 1960s and thereafter. Just imagine how weak the ILO
would have seemed if its Director-General had not, in 1965,
commissioned the special report on apartheid. If the ILO remains
committed to the fundamental values of human rights, dignity and
equality, it is well past time that it should take strong and firm initiatives
on this issue. Such initiatives depend on principled leadership.
I am at this Congress in Sydney with my partner Johan van Vloten, who
has shared my life these past 40 years. If anyone has a problem about
this, they need to get over it: just as the ‘white’ rulers of South Africa
had to get over their notions of racial separateness and superiority. Just
as Australians up to my generation had to get over their notions of
‘White Australia’.
From Sydney and this Congress the message should go back to the ILO
in Geneva, loud and clear. We applaud you for your work to combat
racism in South Africa. We admire you for your contribution to the
22emergence of a new South Africa freed from the narrowness of racism.
But there are new challenges to fundamental human rights that need to
be addressed by the ILO. They arise in the work place. They are
therefore your concern. They certainly involved issues presented by the
AIDS epidemic. However, more fundamentally, they concern issues of
discrimination and termination on the grounds of a person’s sexual
orientation. From Sydney, we should call on the ILO to be bolder and
braver. It can be done. The excuses are running out. It behoves us all
to say so clearly and emphatically. And to follow words with actions;
innovations with implementation. The time for progress on this issue is
now. Racism is but one of the infantile disorders of human prejudice.
The ILO and every civilised person, must be against them all. In the
words of the old union song, presented to us with gusto by the Sydney
Gay & Lesbian Choirs: “We shall not give up the fight ... Holding hands
together we will have the victory”.
*******
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